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Family Law

The leading authority on all aspects of family law

18 JUN 2012

Marital agreements and matrimonial property

Jens M Scherpe
University Senior Lecturer, University of Cambridge, and Academic Door Tenant, QEB, London

This article briefly summarises the key findings of an international comparative research project on matrimonial property and the financial consequences of divorce, with particular regard to pre-nuptial, post-nuptial and separation agreements, funded by the British Academy and published as J Scherpe (ed), Marital Agreements and Private Autonomy in Comparative Perspective (Hart Publishing, 2012). It describes and analyses the approaches to these topics in 14 European and non-European jurisdictions. With regard to marital property, the article concludes that the overwhelming majority of jurisdictions exclude pre-marital property, gifts and inheritances from sharing in the event of divorce, but that at the same time all jurisdictions have a system in place to cover needs and, to a certain extent, compensation. With regard to marital agreements, it can be said that after Radmacher (Formerly Granatino) v Granatino [2010] UKSC 42, [2010] 2 FLR 1900 all jurisdictions analysed now also follow similar patterns, and the test generally is one of two stages: the first stage protects the autonomy of the parties (looking at 'unconscionability of dealings'), the second stage protects the weaker party from the autonomy once exercised (looking at 'unconscionability of outcomes'). The article concludes with thoughts on what this could mean for legal practice in England and Wales.

To read the rest of this article, see July [2012] Family Law journal.

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